Abortion access versus free speech

WASHINGTON
— Faced with the prospect of disruptive and potentially violent antiabortion demonstrations outside medical clinics across the state, the Colorado Legislature in 1993 passed a law designed to insulate patients from protesters and their message.

The so-called "bubble law" created an 8-foot moveable buffer zone around anyone within 100 feet of a medical facility. A protester can approach closer than eight feet only by obtaining permission from the patient.

The US Supreme Court will consider on Jan. 19 whether the Colorado law strikes the proper constitutional balance between a patient's right to gain access to medical facilities and the protesters' right to express their views while standing on public streets and sidewalks.

"There should be nothing wrong with seeking to change someone's mind, walking along beside them and trying to convince them that what they are doing is wrong," says Philip Faustin, who heads the Colorado chapter of Operation Rescue, an antiabortion group. He says the law is "chipping away at an essential right, free speech, when that speech isn't popular."

Women's-rights organizations counter that the law seeks merely to create a safe, stress-free passageway through picket lines of unpredictable protesters. "This is really just about protecting folks who need to get into a health-care facility," says Yolanda Wu of the NOW Legal Defense and Education Fund in New York. "It is hard to know whether the situation will escalate into something that is violent or harassing or aggressive."

Setting precedent?

The Supreme Court's view will help determine the landscape not only for future protests in Colorado, but also for states and cities around the country. Some states and cities currently mandate buffer zones or require permits for demonstrations.

Supporters of the Colorado law say it is a minimal intrusion of free-speech rights, since protesters only face restrictions within the 8-foot zone surrounding each patient. If the patient grants permission, the protesters may speak directly to the patient at length and hand out literature.

"Demonstrators' First Amendment right to engage in numerous forms of communication such as leafleting, picketing, yelling, or singing within 100 feet of health-care facilities is not restricted at all," says a friend-of-the-court brief for several abortion-rights groups written by Lucinda Finley, a law professor at the State University of New York at Buffalo. "Demonstrators merely are prohibited from forcing unwanted close physical proximity within a distance of eight feet of a person entering a health care facility."

Ms. Finley continues: "Such a restriction is clearly content neutral - it does not impinge on what a demonstrator can communicate; it controls only the demonstrator's proximity to his or her target."

The US Solicitor General's office is supporting the Colorado law. In its brief on the case, the solicitor general writes: "The 8-foot limitation on approaches does not prevent communication at closer range if the protester is stationary and the distance is closed by the listener. And, even at eight feet, speech can be readily heard and placards clearly seen."

The law's opponents say giving patients the power to muzzle protesters and forbid them to hand out leaflets and display signs within the 8-foot zone is an unconstitutional prior restraint on free speech in a public area.

Free-speech concerns

"It makes even traditional First Amendment advocacy on the public streets a matter of grace rather than right," says Steven Shapiro in a friend-of-the-court brief filed by the American Civil Liberties Union.

"By granting unlimited licensing power to private citizens, Colorado has created a condition under which the right to speak may be denied based on the content or viewpoint of expression," writes Jay Alan Sekulow of the American Center for Law and Justice in Washington, who is arguing the case on behalf of opponents of the law.

This will mark the second time the high court has considered the Colorado law. In 1997, the Supreme Court remanded the case back to the Colorado courts with instructions to consider whether the law was constitutional or not in light of two high court decisions that had recently been issued striking down portions of state laws restricting antiabortion protests at clinics.

The Colorado courts upheld the law, and the US Supreme Court again agreed to take the case.